One idea is so important to American law that it is taught in the first few weeks of every first-year law school course. Laws made by Congress are more important than executive orders made by the president. The constitution is the most important thing. It is not hard to do. It is not being argued. Still, it seemed like it needed to be said again—in a formal written decision made by a third party in a dispute involving a U.S. Air Force base in southern Illinois.
Arbitrator Marvin Hill refused to step aside from a grievance hearing between the National Association of Independent Labor and Scott Air Force Base on December 30. The Defense Department had stopped going to arbitration hearings because of two executive orders from President Trump that took away the right to collective bargaining for more than two-thirds of the federal workforce. These orders were based on national security concerns. Without the legal jargon, Hill’s answer was pretty clear: an executive order can’t get out of a contract.
His written analysis made it very clear. Hill said that anyone who passed the bar exam knows that executive orders are not as important as federal laws and constitutions when it comes to the law. A collective bargaining agreement that comes from a federal labor law can’t be thrown out just because the president signs a paper saying so. He wrote that changing the law would mean rewriting most legal books.
That’s a big thing to say. Hill seemed to know it too. His decision didn’t seem like a formal bureaucratic ruling as much as it did like a firm reminder of how the law is supposed to work. It felt like this kind of reminder was needed because the law was being questioned.
Because of this dispute, the administration has said that the executive orders effectively stopped ongoing union proceedings while the courts work through three federal lawsuits that challenge the orders. During this process, federal appellate courts have mostly let the orders stand. However, they have not yet decided if the orders are legal. Hill, meanwhile, said that his job wasn’t to wait. The collective bargaining agreement gives him power, and that agreement will stay in place until a court says otherwise.
There is real tension here that has nothing to do with labor law. The Trump administration has used its executive power to change the federal workforce in a very aggressive and planned way. There have been mass firings, buyout plans, and the removal of protections for civil servants. In that bigger picture, the union executive orders fit in. The Hill decision is noteworthy because it wasn’t made by a federal judge, Congress, or a political opponent. Instead, it was made by an arbitrator in the middle of what might have been a small procedural dispute between an Illinois base and a small federal union.
The head of NAIL, Peter Cantwell, said that the decision supported what the union had said from the beginning. He said that the law is the law. It’s a simple phrase that says what needs to be said without going too far.
It’s still not clear what will happen. It’s likely that the appellate cases will decide more than any one arbitration decision could. But seeing an impartial arbitrator stand his ground—using black letter law and refusing to be swayed by an executive order—makes me think that the administration may not have fully understood how many layers of legal infrastructure are in place beneath the levers it’s been pulling.
Executive orders are very strong tools. But they’re not at the top of the legal food chain. That difference, even though it sounds simple and unimportant, seems to be exactly what Hill was trying to say. And it might matter more than anyone in the White House thinks right now.
